The Rocky Road to Energy Dominance: the Executive Branch’s Limited Authority to Modify and Revoke Withdrawals of Federal Lands From Mineral Production

ARTICLES

The Rocky Road to Energy Dominance: The

Executive Branch’s Limited Authority to Modify

and Revoke Withdrawals of Federal Lands from

Mineral Production

HILLARY M. HOFFMANN* & ROBERT L. GLICKSMAN**

ABSTRACT

The Trump Administration’s implementation of its America First Energy

Plan, whose goal was achieving U.S. “energy dominance,” heavily relied upon

public mineral development. Mineral development on federal lands is substan-

tially governed by statute. The statutory legal mechanisms by which the

Executive Branch can “open” or “close” an area of federal lands to mineral

development, whether onshore or offshore, are withdrawal, modif‌ication, and

revocation.

The Federal Land Policy and Management Act (“FLPMA”) and the Outer

Continental Shelf Lands Act (“OCSLA”) are the primary statutes that govern

onshore and offshore mineral development on over 2 billion acres of federal

lands. Both FLPMA and OCSLA authorize withdrawals, which the Executive

can use to place federal lands off limits to mineral development. FLPMA

also authorizes modif‌ications and revocations of withdrawals, which can

remove constraints on such development. The Trump Administration used

both statutes in its quest to expand the areas that are available for private

mineral development through modif‌ication or revocation of withdrawals by

prior administrations.

The authority provided by FLPMA and OCSLA to determine the availability

of federal lands for mineral development is subject to a series of substantive

and procedural constraints. Because it regarded those constraints as undesir-

able shackles on the implementation of its mineral development policies, and

* Professor of Law, Vermont Law School; Visiting Robert H. McKinney Family Chair in

Environmental Law, Indiana University Robert H. McKinney School of Law (Fall 2020). © 2021,

Hillary M. Hoffmann & Robert L. Glicksman.

** J.B. & Maurice C. Shapiro Professor of Environmental Law, The George Washington University

Law School.

173

consistent with its expansive view of Executive Branch power in almost all con-

texts, the Administration was not content to rely on statutory authorization to

modify and revoke development-precluding withdrawals. Instead, it also

invoked nonstatutory, implied or inherent authority to open vast areas of federal

lands to oil and gas, coal, and other mineral development.

Notwithstanding the paucity of judicial precedent governing the parameters

of statutory and nonstatutory Executive Branch authority to reopen lands previ-

ously placed off limits to mineral development, signif‌icant questions surround

the legality of the Trump Administration’s efforts to alter the status of protected

lands and resources. Although it viewed downsizing or revocation of with-

drawals by previous administrations as a quick and effective way to open up

vast new acreage to mineral development, the legal basis for its actions is tenu-

ous at best.

This Article examines both statutory and nonstatutory mechanisms for deter-

mining the availability of federal onshore and offshore lands for uses such as

mineral exploration and development. It identif‌ies the constraints that FLPMA

and OCSLA impose on revocation or modif‌ication of previous withdrawals. It

also explores the parameters of nonstatutory Executive mineral disposition

authority and assesses the legality of the signif‌icant Trump Administration with-

drawal modif‌ication and revocation efforts. It concludes that Congress has

eliminated any implied or inherent withdrawal, revocation, or modif‌ication

authority that may once have existed. It also f‌inds that the most prominent and

controversial of the Trump withdrawal modif‌ications and revocations exceeded

the authority the Executive Branch retains under FLPMA and OCSLA. As a

result, the Trump Administration’s unauthorized pursuit of energy dominance

should result in judicial invalidation.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

I. The History of Withdrawals and Revocations Prior to OCSLA and

FLPMA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

A. 1800-1900: Acquisition, Disposal, and the Pursuit of Manifest

Destiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

B. 1900-1950: Transitioning into Retention and Conservation, and

Growing Questions About Withdrawal and Revocation Authority . . 188

II. Congressional Attempts to Organize the Chaos: the Legislative History of

the Outer Continental Shelf Lands Act and the Federal Land Policy and

Management Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

A. Offshore Public Mineral Development and OCSLA . . . . . . . . . . . . 194

1. The Origins of the Outer Continental Shelf Lands Act . . . . . . 194

2. OCSLA’s Limited Delegation of Presidential Withdrawal

Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

174 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 33:173

B. Onshore Public Mineral Development and the Development of

FLPMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

1. FLPMA’S Legislative History – The Public Land Law Review

Commission Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

2. FLPMA’s Limited Delegation of Secretarial Withdrawal and

Revocation Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

III. Chaos Further Resolved: Congress’s Limited Delegations of Authority

Over Withdrawals in OCSLA and FLPMA . . . . . . . . . . . . . . . . . . . . . . 217

A. Nonstatutory Presidential Revocations on Federal Lands: A Relic of

the Past . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

B. What Remains: Limited Executive Branch Authority to Make,

Modify, or Revoke Withdrawals of Federal Lands Under OCSLA

and FLPMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

INTRODUCTION

The Trump Administration’s energy legacy depended heavily on revoking or

diminishing previous administrations’ withdrawals that protected federally

owned land from exploration and development of minerals such as oil, gas, and

coal. The Administration made its zeal for achieving what it later dubbed “energy

dominance”

1

clear almost immediately after President Trump took off‌ice in

January 2017. In March of that year, he issued an executive order requiring fed-

eral agencies to review actions that “potentially burden the development or use of

domestically produced energy resources,” particularly fossil fuel and nuclear

energy resources.

2

The order directed the Secretary of the Interior to “lift any and

all moratoria on Federal land coal leasing activities.”

3

This language ref‌lected the

Trump Administration’s response to an Obama-era Secretarial order halting

review of new applications for federal coal leases pending the preparation of a

programmatic environmental impact statement (“EIS”) under the National

Environmental Policy Act (“NEPA”).

4

Within days, President Trump’s f‌irst

Secretary of Interior, Ryan Zinke, revoked the Obama coal-leasing ban order,

1. See White House Fact Sheet, President Donald J. Trump Is Unleashing American Energy

Dominance (May 14, 2019), available at https://perma.cc/849Q-65E9; Justin Worland, President Trump

Says He Wants ’Energy Dominance.’ What Does He Mean?, TIME (June 29, 2017), https://perma.cc/

SE2M-LZX7 (noting that President Trump’s “energy dominance” agenda included “a slew of initiatives

aimed at speeding up production of oil, natural gas and coal . . . . Trump has described his policies as a

dramatic shift in direction from the Obama years, [which he] described . . . as ‘eight years of hell’ that

included ‘massive job-killing barriers to American energy development.’”).

2. Exec. Order No. 13783, Presidential Executive Order in Promoting Energy Independence and

Economic Growth, §§ 2(a) & (b), 82 Fed. Reg. 16093, 16093 (Mar. 28, 2017). The Order def‌ined burden

to mean “unnecessarily obstruct, delay, curtail, or otherwise impose signif‌icant costs on the siting,

permitting, production, utilization, transmission, or delivery of energy resources.” Id. § 2(b).

3. Id. § 6, 82 Fed. Reg. 16096.

4. Secretarial Order No. 3338, Discretionary Programmatic Environmental Impact Statement to

Modernize the Federal Coal Program §§ 4, 5a (Jan. 15, 2016), https://perma.cc/GMH3-KDPN.

2021] THE ROCKY ROAD TO ENERGY DOMINANCE 175